ML22230A073
| ML22230A073 | |
| Person / Time | |
|---|---|
| Issue date: | 01/16/1978 |
| From: | NRC/OCM |
| To: | |
| References | |
| Tran-M780116 | |
| Download: ML22230A073 (50) | |
Text
REJURN TO SE~RETARIAT RECORD NUCLEAR REGULATORY COMMISSION IN THE MATTER OF:
PUBLIC MEETING BRIEFING ON POSSIBLE IMPROPRIETY IN THE USE OF NMSS' ANALYSIS OF CALIFORNIA ENERGY COMMISSION'S INTERIM REPORT ON REPROCESSING AND HIGH LEVEL WASTE DISPOSAL (SECY 78-19)
Place -
Washington, D. C.
Date -
Monday, 16 January 1978 ACE - FEDERAL REPORTERS, INC.
Official Reporters 444 North Capitol Street Washington, D.C. 20001 NAT:ONWIDE COVERAGE* DAILY Pages 1 -
47 Telephone :
(202) 3.47-3700
DISCLAIMER This is an unofficial transcript of a m~eting of the United States Nuclear Regulatory Commission held on.. Januai:y lo, 1978 in the Commission's offices at 1717 H Street, N. W., Washington, D. C.
The meeting was open to public attendance and observation. This.transcript has not been reviewed, corrected, or edited, and it may contain in~ccuracies.
The transcript is intended solely for general informational purposes.
(
As provided by 10 CFR 9.103, it is not part of the formal or informal -
record of decision of the matters.discussed.:: Expressions of opinion in this transcript do not necessarily reflect final determinations or.
belief$.
No pleading or other paper may be filed with the Commission in any proceeding as the result of or addressed'to any statement or argument ef,
contained herein, except as the Commission may authorize.
i~o
CR 6062 WHITLOCK All 2
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25 UNITED STATES OF AMERICA NUCLEAR REGUi.ATORY COMMISSION
'PUBLIC MEETING I
BRIEFING ON POSSIBLE IMPROPRIETY IN THE USE OF NMSS' ANALYSIS OF CALIFORNIA ENERGY COMMISSION'S INTERIM REPORI' ON, REPROCESSING AND HIGH LEVEL WASTE DISPOSAL (SECY 78-19}.
I
- Room 1130 1717 H. Street N.W.
I Washington, D.C.
I Monday, l6_January 1978 The Commission met, pursuant to notice, at 11:40 a.m., CHAIRMAN JOSEPH HENDRIE, presiding, BEFORE:
CO~.MISSIONER JOSEPH HENDRIE,.Chairman.
COMMISSIONER VICTOR GILINSKY COMMISSIONER RICHARD KENNEDY '
COMMISSLONER PETER BRAFORD:
NRC STAFF ATTENDANCE:
Robert Ryan Howard Shapar Cliff Smith Dr. Parry Lee Gossick Ken Pedersen Jim Kelley*
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P R O C E E D I N G S (11:40 a.m.)
CHAIRMAN HENDRIE:
Let's see.
I guess we are all here, so why don't we get started.
The next subject is a briefing on how some inform-al memoranda got one place or another in the case of comments on the California Energy.Commission's Interim Report on Re-
~rocess and High Level Waste Di~posal.
The Commission has thorough displays from Staff on this.
It seemed to me a pretty complete job Of wrapping it up.
I might start the proceedings out by noting that back at the* end of September I met here with Richard Maullin, the Chairman of the California Commission, arid his deputy, Jim Walker; Herbert Brown, consultant to the Commission, was with them.
We had a good discussion here on the sort of matters that are of mutual interest.
And the date was.
September 30th.
Mr. Maullin had to go to Capitol Hill to give some testimony or a speech or something like I am not sure which.
He came back later that day and we had a further discussion in th~ afternoon, about 2:00 p.m., my log says.
I must say I can't remember at this point whether I did or did not, but it is quite conceivable that I
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presented him and his deputy with copies of that memoranda on an informal basis with the understanding that it was 'a Staff document.
And I guess we could probably find out whether I did or didn't if I would call Mr.
Maullin, Mr. Walker,and Herb Brown, but I haven't done that.
I note the fact for the record before we get on into other elements-' of the proposition.
I will make one other comment.
We make a good deal in this agency that we don't conceal pieces of Staff view which don't agree with the views of the cognizant branch chief or assistant director, or director, or executive dir-ector, or Commissioners.
And I wouldn't be surprised.but what we will find that this piece of material may' fall in that category.
I wouldn't see any more reason to conceal and be embarassed about this piece of information' than I would a memorandum from a responsible professional on the reactor side where I have had some experience saying:
I don't agree with the Staff position on the safety-related elements of the switch gear arrangement for plant number x, which,we would pre-sumably, I have said, put in a Safety Evaluation Report in the public document room and every place else.
Vic, this briefing is at your request, arid since I have talked at some length,! think it is fair that you
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25 might want t~, if you would like---
COMMISSIONER GILINSKY:
Sure.
CHAIRMAN HENDRIE:
-- to make some introductory remarks, please do so.
4 COMMISSIONER G~LINSKY:
Well, since you have raised the point, I think it is worth saying that what is not at issue here is whether the Staff has a right to its views or to distribute those.
I think it clearly does.
But the question is the proper label-ing of these memoranda.
And I asked for the meeting because a memorandum*
prepared for me by one of the Staff offices came to be mis-used in California political battles between the California Commission and its critics.
It has been passed off as a Commission document.
We have come for a bit of criticism for improperly involving ourselves in California decision-making.
I.must say the document as it was sent out, in fact, lent itself to misinterpretation.
Now, the issue. doesn't go to the merits of the controversy, the substance of tpe memo and so on.
It con-cerns the question of sendi'ng out -- really, of how we an-swer our mai 1.
The question of intent has been brought up, news-:--*
paper articles.
I think it needs to be cleared up.
But
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aside from that, I think we hav~ to-- I think the meeting will have served a us*eful purpose if we come out of it with some sort of guidelines for dealing with state offices,. as we have, for example, for dealing with members of Congress, or similar sort.of correspondence.
And I see you have a set of notes* there, Lee.
MR. GOSSICK:
Yes.
I am prepared to sort of cover this.matter.
Of course, in your memorandum of January the 6th, Commissioner Gilinsky, you requested the briefinq, discussion, of the NRC Staff's role, circumstances surrounding this mat-ter, of the analysis that was prepared by NMSS of this interim report on reprocessing and high,. level waste proposal by the California Energy Resource Conservation Development Commission In that memorandum, Commissioner Gilinsky ex-pressed concern that _there may have been improper contact between the NRC Staff offices and California utilities, utility representatives, legislators and legislative staff members.
You said that there is an appearance -of members of the NRC Staff having allowed themseives to be used by
- San Diego Gas and Electric Company to influence public opinion in California, and having been improperly involved in California-politics and California decisions.
You also asked how the Office of State Programs
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truncated version of the NMSS analysis came to be circulated as an NRC document, and whether or not any member of the Office of State Programs staff or any other person outside of NMSS made any contribution to the analysis which you had received on September 7th, in response to his request made directly to Dr. Smith on August 11th.
On Thursday, January 12th, I sent the Commis-sioners a chronology of the events related to this matter, together with a tab set of all the pertinent documents.
On January 13th, in response to a memorandum of the same date from Commissioner Gilinsky, expanding on his request of January 6th, I provided the Commission with addi-tional inf.ormation having to do with the contacts between members of the Staff and the commissioners or staff members of the California Energy Resources Conservation and Develop;;..
ment Commission.
I think in reviewing this matter, I believe it will be more convenient for you to refer to a consolidated and somewhat less detailed chronology of events that I have asked the Secretary to distribute to you.
(Distributing documents.)
MR. GOSSICK:
Before proceeding with this, how-ever, I would like to reaffirm the conclusions.. which I in-
_ eluded *in my memorandum _to you on January the 12th; I
First, I am informed that no member of the OSP
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25 staff or any.person outside of NMSS made any contribution to the analysis which Dr. Smith provided Commissioner Gilinsky on September the 7th.
And secondly, based on information provided me 7
with regard to the contacts between members of the Staff and the California leg is la tors, u ti li ties, and commis.s ioners and staff of the Energy Commission in California, it is my view that members of the Staff have not engaged in "improper
- contacts, or involvement in California politics or California decision~rnaking."
Now, this chronology of events starts, of course, in August, August the 11th, when Commissioner Gilinsky asked Dr. Smith for an analysis of the interim report that had been submitted by CERDC which I presume had been sent to the Commission, and I believe was forwarded to Dr. Smith for his review.
CO:tv'l'..MISSIONER KENNEDY:
Could I ask if *.the California Commission had solicited any views on the Com--
mission or Staff's part*when they submitted that report to_ us?
MR GOSSICK:
It is not evident from the request that we got.
DR. SMITH:
I would have to ask my staff.
I know personally I was not.
Jack or Bill, were we asked any comments, speci-fically?
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25 MR. PARRY:
Not before this time, no.
DR. SMITH:
Not before this time.
COMMISSIONER KENNEDY:
Well, I was wondering, MR. GOSSICK:
Later on.
COMMISSIONER KENNEDY:
If at some point the 8
California Energy Commission had elicited from us any com-ment of any point DR. SMITH:
Oh, yes.
That will come out later at a later time.
MR. GOSSICK:
At a later date.
On August the 16th, then, a letter from State Senator Alquist came in to Mr. Ryan, asking for a review of this same interim report.
On August the 23rd, Mr. Ryan sent a memo to various Staff offices requesting comments on the interim report.
And then in late August, there was a telephone call apparently from Commissioner Pasternak to Mr. Jaske in the Office of State Programs, informing us that a minority posi-tion on the interim report was being filed and would be furnished to NRC.
I think, also, at_roughly the same time, Homer Lowenberg had, I guess -- or slightly before that, run into Commissioner Pasternak, I believe in a meeting in Vienna and been told* tha*t there was a minority report being p*re-pared.
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COMMISSIONER GILINSKY: Could I ask you:
Was the memorandum prepared with both requests in mind, or was it simply that one memorandum was used also for another purpose?
me.
MR. GOSSICK:
I am sorry; which memorandum.
DR. SMITH:
He is talking about COMMISSIONER GILINSKY: The memorandum prepared for DR. SMITH:
Yes.
COMMISSIONER GILINSKY: *was that --
DR. SMITH:
No.
After the request that you made to have the Califorriia interim report reviewed, I asked Dick Cunningham to delegate or appoint someone in our office, senior tech-nical man, to-review the report.
He came back and said Dr. Parry would be the per-son who would review the report.
It was my -- initially the first report that* I got from the Staff was only about one or two p_ages.
It was rather general*.
I felt that what you really wanted was some-thing that was rather detailed and candid.
And so I sent it baqk to the Staff, and that re-sulted in a report coming back.
I looked at it. It was my viewpoint that since -~ou had asked for the views of the Staff with respect to that report, ahd since I considered it an
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25 10 intra-agency memo; if you*will, from me to you, on that basis I forwarded the report to you.
It was not a report -- a memorandum that was pre-pared for anyone other than you, the one that I signed.
CHAIRMAN HENDRIE:
Well, in particular., Com-missioner _Gilinsky's question is that since these requests, one from him to you for*sort of a private review, and also the one to Ryan from California for NRC's views were arriv-ing sort of within a week or two of one another, --
DR. SMITH:
No.
Dr. Parry '.s memorandum -- Dr. Parryc~s-work in preparing that*memorandum which I subsequently forwarded, was exclusively to answer or to respond to Commissioner Gilinsky.
DR. PARRY:
That is correct.
COMMISSIONER KENNEDY: But it says on this chron-ology that on September 7th, a copy of thatmemo was sent to Mr. Ryan in response to his August 23rd request for Staff comments on the inte.t:im report.
MR. GOSSICK:
I believe there had been a conver-sation in connection with this subject, Commissioner Kennedy, asking on the part of Mr. Ryan's office, whether or not they felt that this thing could be provided to Senator Alquist.
this report -- could be There was discussion that with some revision and
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25 11 some deletion of sort of internal narries and things like this, that they thought it was appropriate.
And that we will get into later on, how that came to *be sent instead of the other report.
But in.. the time period September -- from September 9th to --
COMMISSIONER GILINSKY:
Could I just stop you for a minute.
There is an August 23rd memo in which Bob asks for the views of a number of offices.
MR. RYAN:
Yes.
COMMISSIONER GILINSKY:
And were these selected on the basis of _their participation in the hearings, or simply the relevance of their expertise?
MR. RYAN:
No; they were selected on the basis of our general practice when we have a matter of*this sort, to circulate to the widest possible group of offices within the agency, to elicit comments on matters of this sort.
The selection was made by Bob Jaske in my ab-sence.
I was on vacation at that time.
I _think the selec-tion is correct.
That is the logical -breakdown as far as I can see; OELD, Standards, NRR, and NMSS.
MR. GOSSICK:
And Research.
MR. RYAN:
Research,* RES; right.
I agree with the breakdown.
MR. GOSSICK:
Okay.
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25 12 The week of September 12th, there was a meeting held in Bethesda at NRC, between Mr. Simon of the Energy Commission of California and Dr. Bishop and Dr. Parry.
And. I believe that as a result of this meeting, where there generally was.a discussion of I guess this re-port as well as other matters, at some later time, there was a memo sent from Mr. Simon to Dr. Bishop, I believe,.. pro-viding a copy of their Staff comments on the minority report, and also soliciting any comments that.the Staff had on that interim report, as we mentioned earlier.
So it was not until some time later in September that there was this request directly from the commission staff, asking for*comments.
In late September, or~-
COMMISSIONER GILINSKY:
Let's see; at some point Bill gave them a copy of this.
MR. GOSSICK:
Yes; that was the next point I was going to cover.
COMMISSIONER GILINSKY:
Okay MR. GOSSICK:
-- Commissioner Gilinsky.
We can't pin this date down exactly, but it was
.. either late September or early October, that Dr.. Parry, following this meeting and following the other discussion with the California commission staff, did send to, I guess it was Mr. Simon, was it, Parry?
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25 13 DR. PARRY:
Mr. Simon.
MR. GOSSICK:
Or Mr. Simon, rather; another ver-sion or an edited version of Dr. Smith's September 7th memo.
- Now, COMMISSIONER GILINSKY:
I noticed there was. no covering letter in this package that you presented us.
MR. GOSSICK:
It was only, as I understand it, Dr. Parry, you just put a buck slip or a note?
DR. PARRY:
It was sent as, "as per your request."
COMMISSIONER GILINSKY:
So in other words, these were understood to be the informal views of vour outfit?
COMMISSIONER KENNEDY:
It was sent in accordance with whose request?
DR. PARRY:
Mr. Simon had made a request to us during that meeting.
And that had subsequently been edited and then was sent out under (inaudible).
views," or COMMISSIONER GILINSKY:
So these were not, "NRC MR. GOSSICK:
No.
COMMISSIONER GILINSKY:
or "Commission views?"
MR. RYAN:
That request is reflected in Simon's letter to Parry dated the 22nd of September, I believe it was.
MR~ GOSSICK:
In late September and again in the early October time period, the State Programs and Staff
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25 offices were in the process of considering the proposed response to Senator Alquist.
14 The views expressed by, such as Standards Develop-ment, NRR and others were considered.
The Office of the Executive Legal Director bad proposed a modification COMMISSIONER GILINSKY:
Well, could*go into that.
For example, in Standards, I notice there_is a statement.
Mr. Benaroya says:
"I believe we at NRC should confine our comments to the accuracy of statements*and reports, and so on, not to the conclusion it draws."
There are number of other.comments which seem to have been ignored.
And I am wondering how that came about, including OELD which seemed to have gone over the memorandum fairly carefully.
MR. GOSSICK :.
Yes.
COMMISSIONER GILINSKY:
-- and indicated MR. GOSSICK:
Well, if I may --
COMMISSIONER GILINSKY:
-- indicated portions which they thought inappropriate.
MR. GOSSICK:
Yes.
MR. RYAN:
Mr. Chairman, may I address this one?
CHAIRMAN HENDRIE :
.shoot.
MR. RYAN:
OELD filed a paper with our office in
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25 September -- I can't find ( inaudible) on it. It is F.
MR.* GOSSICK:
It is,9, September.
MR. RYAN:
It is September 9th.
COMMISSIONER KENNEDY:
That is an "f?"
MR. GOSSICK:* That is an "f.~
MR~ RYAN:
This well, let me read it*:
"The subject report was prepared pursuant to certain California statutues pertaining to land use and certification of n:uclear facilities in that state.
The statutes in question are of doubtful validity, at least insofar as their application would frustrate the full effectiveness of federal law.
"However, 1.* t
- ld d
wou seem unnecessary an perhaps *inappropriate to record this assessment in an NRC response to Senator Alquist, since we were not specifically asked to address the preemption issue and since.the actual conflict with federal law may never arise.
""We~_haV!e no other substantive comments to make."
15 We followed that advice, Commissioner, fully and completely.
We did not comment on the question of pre-emption.
COMMISSIOENR GILINSKY:
Well, but let's see; you
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25 16 have got an edited version of your version of the original memorandum prepared in Cliff Smith's office.
MR. RYAN:
Yes.
COMMISSIONER GILINSKY: Which was edited, I under-stand, by Tom Engelhardt.
MR. RYAN:
Yes, that is correct.
COMMISSIONER GILINSKY:
And it --
MR. RYAN:
This come at a later date.
The ques-tion was how to --
file?
COMMISSION.ER KENNEDY:
Excuse me.
Is that in this MR. RYAN:
Yes, it is.
I don't recall the MR. GOSSICK:
Attachment MR. RYAN:
Attachment T.
CHAIRMAN HENDRIE:
Back in that neighborhood.
MR. RYAN: *Justa second.
COMMISS1'ONER GILINSKY:
Also, on the way toward it, I see a memorandum from Salovine which says:
"Considering the broad scope of the subject matter, the majority report is well con-structed and downright factual.
MR. RYAN:
Yes, indeed.
COMMISSIONER GILINSKY:
Which, without getting I
into the merits --
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25 17 MR. RYAN:
Well, let's talk about that for a moment.
COMMISSIONER GILINSKY:
Basically, the --
MR. GOSSICK:
Could we have just a moment.
COMMISSIONER GILINSKY:
Sure.
MR. GOSSICK:
There is one other point*here, that I think it might as well get introduced now..
By the_way,
- this attachment is attachment L, that Tom Engelhardt had proposed.
COMMISSIONER GILINSKY:
Yes.
MR. GOSSI CK:
And my ~-
COMMISSIONER KENNEDY:
In that connection, what he has done is marked a number of suggested changes --
MR. GOSSICK:
Right; editorial and content.
COMMISSIONER KENNEDY:
Okay.
MR. GOSSICK:
And as you will note, at le.ast my copy and I trust yours, has a date of September the 7th, 19 --
COMMISSIONER KENNEDY:
October the 7th.
MR. GOSSICK:
October the 7th.
I am sorry. Octobe the 7th.
Now, on October the 5th, of course, there was the letter from Mr. Pollard to Commissioner Gilinsky indicating that he had a copy of the original September 7th memo that had been addressed to Commissioner Gilinsky.
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25 18 And I wanted to bring that out, in that I think this was a factor, then, in deciding, at least according to the OSP people, how we finally came up with sending this MR. RYAN:
But more than that, Mr. Gossick, the Office of Nuclear Materia],;.Safe~y and Safeguards had advised us in late September that the document in question had been given to the California Energy Commission in the person of Gary Simon.. -
COMMISSIONER GILINSKY: But this was yet another edited version.
MR. RYAN:
Well, I had no idea of that.
I was told that the document had been given to Mr. Simon.
I think it is edited, but it is substantially the same document as MR. GOSSICK: I have been through it line-by-line, comparing it --
COMISSIONER GILINSKY:
But the question here is not whether or not you sent this.'memo MR. RYAN:
I didn't say that.
COMMISSIONER GILINSKY:
-- supplied for me to other people, although I think you should have as a courtesy asked me ab:out*it.
There'is nothing wrong with that memo being sent around.
It is question of how it is portrayed and whether it is portrayed as a Commission view.
I mean, I have no objection to people seeing this
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25 19 memo and when Mr. Pollard asked me for it, :i; put it in the public document and sent it to him.
MR. RYAN:
Sure; I understand that.
I portrayed this memo in my* letter to Senator Alquist as a Staff document.
And it is intrinsically reads a Staff document; NMSS says this and NMSS says that, and this is the view of the Staff.
COMMISSIONER GILINSKY:
Well, we wili get to that.
But the document does --
- MR. GOSSICK:
Which version are we speaking to now; the truncated or the full version.
COMMISSIONER GILINSKY:
Well, I am just sort of following along.
I am up to M.
is revision.
MR. GOSSICK:
M; okay.
COMMISSIONER GILINSKY:_ Or L, I guess it is, which MR. GOSSICK:
Lis the Engelhardt COMMISSIONER GILINSKY:
It is the Eng~lhardt MR. GOSSICK:
Right..
COMMISSIONER GILINSKY:
And he lines out some sentences which characterize the tone and talked about anti-nuclear bias things like that this, rather than dealing with the merits of the technical matters, and if the California people (inaudible), we have the expertise; by all
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25 20 means, we should point this out to.them.
But MR. RYAN:
May I comment on that?
COMMISSIONER GILINSKY:
Yes.
MR. RYAN:
As far as I was concerned, Commissioner, by this time it was a moot issue.
The document was out, as far as I was concerned, to California, and out abroad in the world.
Gflinsky.
This was confirmed --
COMMISSIONER KENNEDY:
This was the document MR. RYAN:
The Smith document, yes.
COMMISSIONER KENNEDY:
This document MR. GOSSICK: The September 7th memo to,Commissioner COMMISSIONER KENNEDY:
The October MR. RYAN:
The original memo.
COMMISSIONER KENNEDY:
The October 10th paper,
. unedited; that is, this document without the line-throughs and marks on it-~ no?
MR. RYAN:
No.
The original memorandum from Dr. Smith COMMISSIONER KENNEDY:. Okay.
MR. RYAN:
-- to Commissioner Gilinsky.
,COMMISSIONER KENNEDY:
All right.
And that was -- had been transferred to Mr. Simon
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25 21 of --
MR. RYAN: That was my understanding.
COMMISSIONER KENNEDY:
A.
B, had been made available through -- in the public document room and to Mr.
Pollard.
MR. RYAN:
Right.
COMMISSIONER GILINSKY:
Well, but -- wait a min-ute.
Mr. Alguist did not ask for Mr. Smith's memorandum to me.
He asked for NRC views; right?
MR. RYAN:
That's correct.
COMMISSIONER GILINSKY:
So in sending him this memorandum, you are passing it off as the NRC --
MR. RYAN:
No, sir.
COMMISSIONER GILINSKY:
-- the views of the NRC.
MR. RYAN:
No, sir.
I stated in my letter to Senator Alguist that this*
was prepared by the Staff and the document intrinsically states that it is a Staff document.
I suggest that your observation to me on the telephone a couple of weeks ago is correct; that there is little understanding in the world abroad of the distinction between Staff and Commission, and that the NRC is viewed as a monolith by the world at large.
But as-far as I was concerned, I was not representing this to be a Commission document.
I was
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25 representing it to be a Staff document and so stated in my letter to Senator Alquist, and reaffirmed it in my subse-quent letter to Senator Alquist.
COMMISSIONER GILINSKY:. Well, it would seem to 22 me, getting -- well, it is at least unclear.
I mean, he --
Senator Alquist writes a letter to an office of this Com-*
mission, gets.a response.
I think he can fairly well ac-cept that a reason to think that is the view of this organ-And we are a lot more careful in writing to Congressmen.
Senator Alquist, in his way, is certainly an important leader in energy matters in California.
And I think he has a right, when he asks for it, to know where this Commission stands.
If he gets more limited sort of advice, it ought to be clearly explained that that is what it is.
I notice also that ELD nonconcurred in this memor-andum.
MR. RYAN:
Yes, that's true.
COMMISSIONER GILINSKY:
And it went out despite that.
MR. RYAN:
Yes, indeed.
That frequently.happens in this c*ommission..
MR. CHILK:
Seldom.
(Laughter.)
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25 23 MR. RYAN:
May*I describe the nature of the non-concurrence.
COMMISSIONER GILINSKY:
I thought.you had every-thing under control, Howard.
MR. *RYAN:
There was. no nonconcurrence as far as legal matters were concerned.* The nonconcurrence had to do with the perjorative language, at least the language was* so referred to by Mr. Engelhardt,. contained in the Smith memor-andum to you, dated September 7th.
That is why we went through this exercise w+/-th Mr. Engelhardt, to see if we could come to an accommodation on a document which would meet his approval.
.As I said before, as far as I was concerned, that became mooted when it was obvious that the.original memoran-dum from Mr. Smith to you was out in the world.
COMMISSIONER GILINSKY:
Well, but to get back to that point, it is not that memorandum which is at issue; it
'is a question of NRC views.
I mean, he didn't ask for that memorandum.
First of all, it is not out in the world.
It was given as an informal view of his office by Bill to Mr. Simon.
There was no reason to think it went beyond the commission.
We inquired of Mr. Pollard, and it turned out that he had received a copy, althou~h I don't know how you could
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25 have known that he had the complete copy.
And he sent his only copy also to Mr. Simon.
Mr. Simon was the possessor of the two copies that were floating around in the world.
MR. RYAN:
He said he -- I knew it because he said it in the first part of his letter.
I presume he was speaking the truth.
He said:
"I have come into possession of a copy of a document from Mr. Smith,"
-- to you.
COMMISSIONER GILINSKY:
But in any case, there 24 still remains the question of how we represent the views of this agency.
And here OELD says there was a lot perjorative language, and your office deals with state relations.
And I guess I am a little surprised that you so casually send out memoranda when asked for the views of this agency, which contains such perjorative. language.
MR. GOSSICK:
Commissioner Gilinsky, I accept your comment and the view here.
I think that we have learned through this process that there perhaps should have been a little greater sensitivity in at least bringing to the Commission as a whole a matter of how we responded to Senator Alquist, recognizing sort of the controversy and the possible delicacy-of-this-matter.
I accept that, and I hope that we will not
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25 25 CHAIRMAN HENDRIE :
I think --
MR. GOSSICK:
-- have this problem.
CHAIR111AN HENDRIE:
I think -- look; I think that the fact that the assorted memoranda of one version or ano-ther got brandished on both sides of the controversy in California and so on, is unfortunate.
But I am afraid that from time-to-time those things will happen -ana are almost inevi tafule.
I think that the problem that State Programs had here*is that if the original version of a Staff document is public and they mod-ify it to take out pretty candid language along the line of Tom Engelhardt's suggestions, you really are choosing be-tween which horn of a dilemma you want to be hung on.
If you take the candid stuff out, you __ are going to get a holler back from some place that you have emascu-lated a candid and forthright Staff view, and that that was improper.
If you don't take it out, then you have the pre-sent problem.
So, I can see you know, I can see State Programs in trying to decide what to do with this and whether to go with lining out the tougher comments about the California report, really having a problem to go -- Now, I suppose Bob could have come ferward through Lee to the Commission and said:
Now, here is a head scratcher.
Which way shall we go
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25 26 here?
But there is an enormous volume of business moving through the Staff and then he thought he ought to settle it as he thought best.
COMMISSIONE.R GILINSKY:
Well, I hope you are not excusing the action here.
MR. RYAN:
May I make a statement, Mr. Chairman.
CHAIRMAN HENDRIE:
I don't think -- let me make it quite clear, Vic.
I don't think there has been on he Staff's part, any sort:of wrongdoing.
I think it is unfor-tunate that these documents have gotten embroiled in state fight.
But I recognize that our material. are going to be used on one side or another on all of these things.
And it seemed to me that you ask here for a stan-dard.on the Staff's side, which beggars human ability, to define whether or not the problem is going to come down to be one that some of this candid langugage from Staff pro-fessionals gets spread and used and represented as the Com-mission's view, or whether he is going to be.charged, if he takes it out, with having edited and toned down and emascu-lated a strong Staff professional view.
You know, we have a lot of people around here who
/
think that those things ought not to be done.
COMMISSIONER GILINSKY:
Well, he could easily have
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25 27 sent both.
And said, this is a memorandum, an internal mem-orandum that was sent to me, and. thes.e are the views of the NRC, if you asked for our considered views.
CHAIRMAN HENDRIE: Well, I think that's a great you know, we can sit here months after the event and say:
Well, we could have fine tuned, or Bob could have fine tuned the actions and done this and this and this.
I must say it didn't seem all that clear at the time, and COMMISSIONER GILINSKY:
Well, I mean in (Simultaneous discussion.)
COMMISSIONER KENNEDY:
I keep getting confused by this very complex chronology which seem to have people acting in several directions at the same time, overlapping, really.
Some people were doing one thing; others were doing another.
I mean, they were doing.it all at the same time.
And it is not clear to me that they were all talking to each other, arid that applies to Commissioners as well as to Staff.
Now, I am looking at SECY 77-543, which is item Qin this package.
And it is my recollection that this was brought before the Commission, and I am looking to see what was decided in the matter.
The proposition that was put forward here was that a letter from Mr. Smith be sent to Dr. Maullin, forwarding an offer of assistance, and be a copy of this report, the
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25 28 letter from Dr. Smith to Commissioner Gilinsky.
And that was brought before the Commission.
And the Commission concluded that a formal response to the request from Dr. Maullin was probably inappropriate or unnecessary, at least, and that a conversation between the Chairman and Dr. Maullin, offering on an informal basis what ever assistance would be useful to Dr. Maullin and the commission, would follow.
Isn't that correct?
MR. RYAN:
That is correct.
COMMISSIONER KENNEDY*:
Thank you.
MR. GOSSICK:
And as you say in that COMMISSIONER KENNEDY:
So I am sure I understand what happened.
MR. GOSSICK:
in that paper also, although it was after the fact on October 17th -- or at least that is the date of the paper; I am not sure of the date the thing was set down here -- we point out that the -- a report had been sent to Senator Alguiest.
COMMISSIONER KENNEDY:
Right.
MR. GOSSICK:
and also that we understood that Mr. Pollard had gotten hold of..it by them.
COMMISSIONER BRADFORD:
Could I come back to I just was thinking of something you said a moment ago; you suggested that State Programs could have sent both; the memo to you and then an expurgated form as a Commission
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~-,-----------------,-----
29 position.
Would -- it would still have taken something more than that to qualify asthe Commission's position.
COMMISSIONER GILINSKY:
Oh,yes.
CHAIRMAN HENDRIE:
Sure.
MR. GOSSICK:
As I said COMMISSIONER GI LINSKY:
Well, :-I guess I am sur-prised that memoranda of this importance ar~ not brought to our attention.
I mean, a routine inquiry from a Congressman certain would be.
And I think this is just as important.
And I don'.t think that the Commission would like its Congressional mail handled in this way.
- MR. GOSSICK: I have *accepted that point, Com-missioner Gilinsky.
I can assure you that if we get another request for review of their second report or some such like document from another state, you will know about it.
COMMISSIONER GILINSKY:
Can I just ask you:
Why was the truncated version prepared in the first place?
MR. RYAN:
-Truncated is a perjorative term.
Commissioner.
I don't know that it --
COMMISSIONER GILINSKY:
Shortened version.*
MR~ RYAN:
Shortened.
(Laughter.)
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25 30 First of all, we -- it might be well to read into the record, the changes.
And I think they are basically --
one line on the first page.
The memorandum from Dr. Smith to you said:
"This report was reviewed."
And that was changed along with the heading in the shortened version to, "these reports were."
And then the next, the second sentence after that deleted~
"Subsequent to the receipt of your request, Mr.
Lowenberg brought to the Staff's attention the minority corn-commission report on the interim report that he received directly from Commissioner Pasternak.
A copy of th~t minority report is enclosed for your information."
When we were thinking of framing a special re-sponse to Senator Alquist, it didn't seem appropriate to us to put in there that "subject to your request," presumably Alquist, Mr-. Lowenberg brought the Staff's attention to the minority commission thing.
I don't think there is anything corrupt or sini-ster about that delection.
If you go through the document, you will come to
-- the next change occurs on page 11, in other words, 10 pages are completely.
And that consists of changing Woolrich,
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25 31 W-o-o-1-r-i-c-h, to Willrich.
The next change --
COMMISSICNER KENNEDY:
Presumably, that is a matter of accuracy?
MR. RYAN:
That is a" matter of accuracy.
The next change is COMMISSIONER KENNEDY:
Hopefully~
MR. RYAN:
Yes.
I we were right.
The next change is to correct the spelling of solidification on page 13.
It was spelled s-o-1-i-d-i-c-a-
- t-i-o-n.
CHAIRMAN HENDRIE:
How come you know how to spell solidification and the waste treatment fellows don't?
MR. RYAN:
I make no defense for my spelling, Mr.** Chairman?
(Laughter.)
COMMISSIONER BRADFORD:
Bob, I take it there are some substantive changes?
MR. RYAN:
It is the changes of consequence --
they are on page 13 through the end.
And that material was deleted.
I:t was deleted at the request of NMSS on the *
- theory that it was internal matter, and basically, I think that is a fair statement of what it is.
COMMISSIONER GILINSKY:
Now, what did Mr. Alquist
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25 32 take this to be; do you know?
MR. RYAN:
I have no idea.
I have had no com-munication from Senator Alquist.
I have never met the gentle-man, nor -have I ever spoken to him.
It wrote him a letter, the October 17th letter, and I wrote him another letter at your request in December saying that I wanted to re-emphasize that we were talking about Staff views and not Commission views.
COMMISSIONER GILINSKY:
You mentioned also that somewhere along the way, a conversation with a San Diego attorney, bringing the matter to your attention?
MR. RYAN:
I mentioned that to you in my memoran-dum of December 22nd.
COMMISSIONER GILINSKY:
Which I think is not in the chronology.
MR. RYAN:
I believe it is.
COMMISSIONER GILINSKY:
It is?
MR. RYAN:
Or it was when I left on Wednesday.
MR. GOSSICK:
Appendix T, attachment T; I believe that is related.
MR. RYAN:
Yes.
I had a call ---by the way it was not a call which I initiated,-- I had a call from a Mr. Axlerod who apparently represents San Diego Gas and Electric.
I have never met Mr. Axlerod and I don 1 t know what he looks like.
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25 33 And he said that he was curious to know what had been sent to Senator Alquist by way of an attachment to my letter.
And I told him, thinking I was accurate, that Dr. Smith's memorandum of September 7th had to been sent to Senator Alquist.
And he said:
That's curious.
I have been to the public document room and I don't find that; I find a 12-page or 13-page document.
And that was the first time that I knew --
COMMISSIONER KENNEDY:
Whos is Mr. Axelrod?
MR. RYAN:
He apparently represents San Diego Gas and Electric.
At least that is how he represented himself to --
MR. GOSSICK:
A Washington law firm.
MR.. RYAN:
I went to the document room and dis-vered that the Smith memorandum had not been sent with my letter, although I might say that in my file it was appended to my copy of the Alquist letter, but rather, this abbre-viated version had been sent.
That was not my intention.
That was a clerical error.
More particularly, it was a mistake on my part be-cause I should have specifically checked the enclosures to this document~
I didn't.
I was on my way out of the town to
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25 34 cover a meeting on behalf of Chairman Hendrie in Ohio that week.
And as I was leaving the office, I signed a document which was the letter to Senator Alquist dated October the 17th.
It had to be retyped for some reason; some spelling error or something.
And I said to the Staff:
Put Smith's memorandum in this as an enclosure.
And they said:
Right.
And appar-ently, it was not right.
They misinterpreted my instruction and they put in the abbreviate version.
I take full responsibility for that, because as I say, I should have checked the enclosures.
But as far as I am concerned, there was nothing sinister or corrupt in such a mistake.
COMMISSICNER GILINSKY:
What is the current status of this matter?
I noticed we have gotten letters from both sides of the California Commission.
MR. RYAN:
I have -- yes; a letter was received on -- well, some day last week from Commissioner*Pasternak.
MR. GOSSICK:
January the 2nd--- no; I am sorry; January 9th.
COMMISSIONER GILINSKY:
January 9th.
MR. RYAN:
He thinks it is a useful piece of business.
CHAIRMAN HENDRIE:
Well, like a lot of our mat-erial some folks hate it and some folks like it.
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25 35 COM!:1ISSIONER GILINSKY:
Are you intending to re-spond?
MR. RYAN:
I intend to respond to Commissioner Veraninni, who has written me a letter.
Right now --*
COMMISSIONER GILINSKY:
Does the other letter not call for a response?
MR. RYAN:
I don't know.
I haven't thought about it, to tell you the truth.
The first time I saw it was on Sunday when I came into the office.
CO~.MISSIONER KENNEDY:
To whom was it addressed?
Was it addressed --
MR. RYAN:
It was addressed to me.*
COMMISSIONER KENNEDY:
-- to you?
MR. RYAN:
Yes.
MR.. RYAN:. The staff of NMSS is now looking at the technical enclosures to Commissioner Veraninni's letter of December 22nd, t believe, to give us some advice on the nature of those *comments.
I intend to reply to Commissioner Veraninni, and I intend to tell him that it was not my intention in any way to intrude into California politics, that it was*. in fact my understanding that the California Energy Commission had received this paper in September and sending it.to Senator Alquist was not a "brazing" attempt -- I forget the words of Commissioner Veraninni, but somehow to intrude
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25 36 into California politics.
I. do intend to reply to Commissioner Veraninni.
COMMISSIONER GILINSKY:
Well, I have got a 12:30 appointment, but I would like out of this experience to come some set of guidelines on how we deal with requests of this sort.
I think we ought to rethink.
I MR. GOSSICK:
Obviously, we have. to use judgment, Commissioner Gilinsky.
I don't think you are suggesting that all mail from all state legislators be the kind.
COMMISSIONER GILINSKY:
No; no; no; nothing of MR. GOSSICK: -- forwarded up here.
COMMISSIONER GILINSKY: But this is not just a MR. GOSSICK:
No; I understand.
I understand.
And I said I have accepted the fact that we could have used a little *greater sensitivity in recognizing that there was a delicate, or possibly controversial subject here.
COMMISSIONER KENNEDY:
Could I ask.if one could hypothesize dealing with Senator Alquist's request in a different way, and if so, what would it have been?
I.have asked myself:
What would one have said t6 Mr. Alquist.
One could start out by saying:
Dear Mr. Alquist:
"It was nice of you to write, but
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25 37 we are not going to reply."
I doubt that that would have been considered among the more responsible courses that a federal agency charged with advising people in the world on matters concerning health and safety of nuclear power.
I think Senator Alguist could expect some general views from us.
Now,.how could we have responded -- I am asking-this as instructive to me thinking about the guidelines which Commissioner Gilinsky is speaking of.
What could we have said?
How could we have done this somewhat better?
MR. RYAN:
I have n.o idea.
DR. SMITH:
You know, when I look at this,.it seems to me that what really happened is the fagt that an intra or an internal memo that was to serve one': purpose; that is, to inform Commissioner Gilinsky that basically the Staff felt that they could build upon it or edit it to serve an-other purpose and therefore, save some time.
I was not --
COMMISSIONER KENNEDY:'*:
But it was a memo that had been made available in any event --
DR. SMITH:
Yes.
Well, I was --
COMMISSIONER KENNEDY:
in another way to the public.
DR. SMITH:
I think that
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25 38 COMMISSIONER KENNEDY:
Right?
You know, that is a fact.
DR. SMITH:
Yes; that is something that I found out myself after the fact.
In fact, most of the things that I have found out were aft~r, because I wasn't involved with.
the editing or any of that.
COMMISSIONER VILINSKY:
Did you know of this memo being used to reply to DR. SMITH:
No, I did not.
COMMISSIONER GILINSKY:
Senator Alquist.
DR. SMITH:
No.
Once I signed off on the memorandum to you, in effect, Commissioner, I guess you could say I was out of the picture until you called me and said that you had some con-cerns.
I was just saying that in retrospect, as Mr.
Gossick said, you know, that what we probably should do in the future, if it came in again, knowing what we do now, is to look at our response to that senator from the standpoint of an NRC position in which the report, the language is factual.
very What was prepared and what I signed off was a was just simply internal from the Staff to you.,
COMMISSIONER KENNEDY:
But certainly you would not describe as not factual.
DR. SMITH:
Oh, it was factual, but we also, you
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25 know, some of the language in there was our own view.
In other words, it got beyond the realm of just simply facts or purely technical.
When I looked at it, I.felt that at the time 39 that it was important for the Commissioner to know about it, to really get the Staff's candid view.
COMMISSIONER BRADFORD:
I would hate to have you change your mind on that.
I mean, not--*
DR. SMITH:
No, I am not talking about --
CHAIRMAN HENDRIE:
Peter, it is a useful point, because _if you say -- if we sit here and say that the Staff should either have never allowed itself to write fairly hard-hitting and candid commentary as in the best judgment of the people who did it, saw in their best judgment that they ought to write it; I can't see any difference between that and sitting here and saying to this revi.ewer on some reactor license:
Now, tone it down, fella; don't call it like it is, as you see it as a competent and responsible professional.
And if that were the'issue before the house, you know, I would be pounding the table and saying:
Call it like it is.
And I think when the~e things come out, the other sort of the mirror image, you have to accept that.
COMMISSIONER GILINSKY:
I think we have to dis-tinguish between releasing the doc_uments, which is proper,
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25 40 and the Staff* holding to its vi.ews, which is proper, and these views being conveyed in a manner that lends itself to be thought to be (inaudible) organizations use.
CHAIRMAN HENDRIE:
Vic, I agree with you, but Ryan wrote to Senator Alquist and said:
"The review conducted by a number of individuals on the NRC Staff at the request of Commissioner Gilinsky is now complete.
I apolo-gize*for taking so much time."
And so on and so.on.
I think we are all pretty sensitized now out of this affair so that in subsquent -- any similar subsequent c6mmunication down the line, there will be a very substantial reiteration that this is a view from several professionals on the Staff and doesn't represent the agency position or the Commission position.
But I really find it very hard to find that the language he used in the transmittal was calculated to mis-lead people into thinking this was an agency position.
Now, they --
COMMISSIONER GILINSKY:
Wel*l, I didn't say cal-culated to mislead.-
I send, "lent itself to misinterpra-tion."
CH.AIRMAN $:ENDRIE: I think unfortunately that*is the nature of the world in which we have to work now, and I
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25 41 agree with you.
line.
I think, as I say, that we will careful down the MR. RYAN:
Your exact phrase, Commissioner, was:
"There is the appearance of members of the NRC Staff offices having allowed themselves to be used by San Diego Gas and Electrict Company to influence public opinion in California on the question of whether the proposed Sun Desert Plant should be exempted from the California moratorium on nuclear licensing.
"It also appears,that the NRC Staff members may have been improperly involved in* California politics and California decision-making. The matter needs to be cleared up."
And it is headed, "The Meeting on Possible Im-propriety on the use of NMSS' Analysis of California Energy Commission Interim Report on.Reprocessing and High Level Waste Dispo~al."
COMMISSIONER GILINSKY:
That's right, and I was reacting to newspaper articles on California.**
MR. RYAN:
May I make a br'ief statement, Commissioner?
(Pause.)
CHAIRMAN HENDRIE:
I think, since we are a minute
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25 42 off 12:30, Bob; fairly brief.
MR. RYAN:
Well, I regard it as a serious matter.
I affirm to you, Commissioner and Mr. Chairman, that there has been no impropriety as far as I am concerned, or my office has been concerned, in this matter.
I have not had improper, nor has anybody at my office, had improper contacts with the California Legislature, the California utilities, the California Energy Commission, or anyone else.
I would like that to be stated.
COMMISSIONER KENNEDY:
I accept it.
Let me if I may; I would like to make one note.
I think that you said it well, Mr. Chairman.
It is the world in which we live.
I would suspect that all the dis-claimers in the world notwithstanding, that to the extent that we provide any Staff advice to anyone, sooner or later it is going to appear in the newspapers, or in the trade journals, I would note, as NRC Staff or_ NRC official views.
And I submit that the public is not going to make, all the disclaimers notwithstanding, that superb distinc-tion between the official views of the Nuclear Regulatory Commission and what ever it was the newspaper just called them.
That is a fact of life. It seems to me the choice, then, is whether we respond to what I believe to be legi-timate requests for advice and information from technical
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25 43 people, qualified, superbly so, to provide it, at the risk of a variety of charges from time-to-time; or accepting that risk and doing what I believe to be among the charges af-forded us by the Congress.
CHAIRMAN HENDRIE: Peter, comment?
And then I will give Vic the last word.
COMMISSIONER BRADFORD:
One quick footnot~ to your opening statement, and I guess what I ought to just note in the record, is that I was at that same meeting part of it,,.anyway, that you had and have no recollection of the documents we discussed.
But I wasn't at all of it.
Other than that, I guess -- the point has been said, there is no need for me to reemphasize it, regarding that you need to touch base and that -- to make clear what is and isn't a Commission position.
Beyond that, just the point that I started to pur-sue, which is that I would hope that this meeting didn't~
have the effect of watering down in any way the assessments from any of the offices involved, for that matter, offices that weren't involved in this one, but matters referred to.
MR. GOSSICK:
I would hope not, Commissioner, but
- -I must say I in somewhat doubtful that it may not have some-impact.
COMMISSIONER BRADFORD:
Let me just ask, then:
What do you think is necessary for it not to have J
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25 47 without being (Laughter.)
COMMISSIONER GILINSKY:
I assume you will stick this in the public document room.
MR. RYAN:
Yes, indeed.
CHAIRMAN HENDRIE:
Okay.
I think Vic has to go and we will call it to a close.
I want to make clear before,-~lease before you go and the meeting breaks up that for myself, I regard the outcome of this briefing as not supporting any sort of charge of improper conduct.
You have accepted responsibility, ap-priately for getting -- you know,the office got.the wrong thing in the envelope, and so on.
I think that is fair, and I think we all recognize the need to be sensitive to this sort of a situation.
But if there has been left a lingering trace that you or other members of the Staff have been accused of doing improper things, let me say on my own -- for myself, that I do not believe that is the case.
Chairman.
MR. RYAN:
Thank you, Mr. Chairman.
COMMISSIONER KENNEDY:
I would accept that, Mr.
(Whereupon, at 12:38 p.m., the meeting on the above-entitled matter was adjourned.
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25 that impact?
Some clear understanding, presumably of how the material be used and what the format should be for its subsequence release.
MR. GOSSICK:
Well, I think, you know, it ought to start at the very beginning of the process when we are asked to perform such an analsysis involving a lot of 44 Staff time, by the way,
-- or any kind of a safety review of some controversial matter that we, whether it is from one of the Commissioners or from some outside source, such as in this case, that we ought to be very clear as to where we are going when we start this thing.
And whether we do give it something than a full works in all treatment, that obviously the Staff did in this case, or whether circumstances warrant some other kind of treatment such as the Chairman pointed out, you know, the options that one might have considered:
We don't respond at all or we do or some middle ground.
I think it has to be sort of done in*the beginning, before you start responding, rather than trying to fix up something later on.
DR. SMITH:
I don't know if there is an answer to your question, Commissioner Bradford, really, because in the atmosphere that we are in right now, as already has been dis-cussed briefly, the Staff is going to find itself contin-ually involved in having to review situations which are highly
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25 45 political, if I can use that word.
.And the Staff also oper-ates knowing that what ever they do can be and probably will be subject to a Freedom of Information Request.
Anq I suppose that one just has to go ahead and call it as he sees it and make sure what ever he says is factual.and that he is willing to stand behind it.
And that certainly has been my charge to my staff and will continue to be.
But, you know, subconsciously how ~ey feel is something else.
MR. RYAN:
On my par~, Commissioner, I.think that this exercise will have a chilling effect upon the Staff and its ability to deliver candid comments, because of the ac-cusatory, at least the appearance of accusatory memorandum and sug.gestions of improprietary and what to the Staff ap-pears to the Staff to be a pretty straightforward piece of business.
I don't know how to avoid it, either.
COM.MISSIONER BRADFORD:
I take it, though -- Let (inaudible) some precision, that that problem doesn't focus on the original preparation of the memorandum.
MR. RYAN:
I think it will in future times.
I think of NMSS Staff were asked to make candid comments on a similar report in the future, they would not be as candid as the comments which were contained in the report from
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25 46 Dr. Smith to_Commissioner Gilinsky*of September 7th.
a belief.
DR. SMITH:
I hope you are wrong on that, Bob.
MR.. RYAN:
I hope I am wrong, too.
I have stated DR. SMITH:
And I would MR. RYAN:
Obviously --
DR. SMITH:
And I certainly would say to my Staff and there are some of them sitting now who were involved, that I will continue to want their candid views.
I don't want to reopen the issue.
I don't think that it is the candid so much as that -- that it caused the problem, but something that was written for one purpose somehow or another we got off on another tack with it, and then that is where the trouble lies.
COMMISSIONER KENNEDY:
But you cannot write, am r correct, you cannot write two different papers on the same subject for different audiences.
That is the point I was trying to make earlier.
audible).
MR. RYAN:
You can, but one of them will be (in-COMMISSIONER KENNEDY:
Of course.
MR. SHAPAR: I think _the next time the Commission-COMMISSIONER KENNEDY:
Or be seen to be.
MR. SHAPAR:
I think the next time the Commission asks for my candid views, I will give them my candid views